On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-245-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
Plaintiff Gold Coast Properties, LLC appeals from the summary dismissal of its complaint challenging bulk variances granted by defendant Ocean City Zoning Board of Adjustment (Zoning Board) to defendant 2809 Wesley, LLC. (defendant). Defendant moved for summary judgment, asserting plaintiff's complaint was filed out of time. We affirm.
We first provide the factual background regarding a nearly decade old dispute relating to the development of a vacant lot located at Block 2800, Lot 3 on the Ocean City Tax Map, commonly known as 2809 Wesley Avenue (Lot 3 or the subject property). In 1999, LMW Properties (LMW), an entity related to plaintiff, entered into an agreement to purchase the subject property. ATIM Family Partnership (ATIM) owned the properties in the same Block located on either side of the subject property (Lots 2 and 4).
ATIM desired to own contiguous lots and approached LMW about swapping Lot 2 for Lot 3. ATIM suggested it intended to construct a garage with overhead living space on the subject property, designed to service the existing residence on Lot 4. In 2000, LMW executed an agreement to assign its interest in acquiring the subject property to ATIM, conditioned on specific use and development restrictions. The two relevant restrictions were that ATIM was to build a garage and any development would be set back thirty-five feet from the bulkhead. ATIM completed the purchase of the subject property.
In 2004, ATIM submitted an application to the Zoning Board seeking approval to demolish the residence on Lot 4 and construct a single-family residence across the subject property and Lot 4. ATIM initiated a declaratory judgment action, challenging LMW's suggestion that its proposed development breached the use and set-back restrictions set forth in the parties' agreement. In a May 10, 2007 opinion, the trial court invalidated the use restriction but upheld the set-back requirement. Both parties appealed.*fn1
In April 2008, while the appeals were pending, defendant, as the contract purchaser of the subject property, applied to the Zoning Board for bulk variances for development of Lot 3.*fn2
On November 6, 2008, defendant published a notice of its zoning board application in the Ocean City Sentinel and subsequently mailed notice of the application, by certified mail, to owners within 200 feet of the subject property. Plaintiff's notice was sent to 500 Grove Street, Haddon Heights, the address provided on the Ocean City Tax Assessor's certified list, dated October 17, 2008.
On November 19, 2008, no opposition was presented and the Zoning Board unanimously approved defendant's application. The following day, plaintiff's mailed notice was returned by the post office to defendant marked "FORWARD TIME EXP., RTN. TO SEND[ER]: GOLD COAST PROPERTIES LLC 515 GROVE ST STE 1A HADDON HGTS NJ 08035-1734."*fn3 The Zoning Board's December 17, 2008 resolution approving defendant's bulk variance requests was published in the Ocean City Sentinel on January 1, 2009.
On March 3, 2009, counsel for defendant had a conversation with counsel for LMW and mentioned the November 19, 2008 Zoning Board determination. Plaintiff explains it first learned of defendant's zoning application as a result of these comments.
On April 6, 2009, plaintiff initiated its complaint in lieu of prerogative writs alleging that notice of defendant's variance application was defective and the decision of the Zoning Board was arbitrary, capricious, unreasonable and contrary to law. Plaintiff asserted it would have presented opposition to the variance requests had notice been mailed to its correct address.
Defendant moved for summary judgment, arguing plaintiff's complaint was filed outside the forty-five day limitations period set forth in Rule 4:69-6(b)(3). The trial court granted defendant's motion ...